The State of Western Australia v Rigden
[2018] WASC 217
•26 JULY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- RIGDEN [2018] WASC 217
CORAM: HALL J
HEARD: 17 JULY 2018
DELIVERED : 26 JULY 2018
FILE NO/S: INS 338 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
WILLIAM MATHREW RIGDEN
Accused
Catchwords:
Criminal law - Trial by judge alone - Whether accused lacked the capacity to know that what he did was wrong
Legislation:
Criminal Code (WA), s 1, s 26, s 27
Result:
Accused found not guilty on account of unsoundness of mind
Custody order made
Category: B
Representation:
Counsel:
| Prosecution | : | Mr P M Usher |
| Accused | : | Ms L Boston & Ms A M Padmanabham |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | A Padmanabham |
Case(s) referred to in decision(s):
Evans v The State of Western Australia [2010] WASCA 34
Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138
Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659
R v Matusevich & Thompson [1976] VR 470
R v Michaux [1984] 2 Qd R 159; (1984) 13 A Crim R 173
R v Porter [1933] HCA 1; (1933) 55 CLR 182.
Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358
The State of Western Australia v Lang [No 2] [2016] WASC 206
Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254
HALL J:
The accused is charged that on 25 May 2016 at Armadale he murdered his father, John Clayton Rigden. On 30 January 2018 Corboy J made an order that the accused by tried by judge alone, pursuant to s 118 of the Criminal Procedure Act 2004 (WA).
The trial occurred on 17 July 2018. At the commencement of the trial the accused was arraigned and entered a plea of not guilty on account of unsoundness of mind. Both parties called expert evidence at the trial that supported a conclusion that the accused lacked at least one of the relevant capacities in s 27 if the Criminal Code (WA). The prosecution accepted that the appropriate conclusion in the circumstances is that the accused should be found not guilty on account of unsoundness of mind.
For the reasons that follow I am satisfied that it is more likely than not that the accused was in a psychotic state at the time he caused the death of his father. That psychotic state was likely to have been of such a nature and intensity as to deprive the accused of the capacity to know that he ought not to do the act that caused the death of his father. Accordingly, the accused cannot be considered criminally responsible for his actions and must be found not guilty on account of unsoundness of mind.
In these circumstances I am required to make a custody order pursuant to s 21 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA). The effect of that order is that the accused will be detained until released by an order of the Governor: s 24.
Facts
At the commencement of the trial counsel for the prosecution and counsel for the accused stated that they both intended to rely upon an agreed statement of facts. It was proposed that this statement be tendered and read to the court, rather than tendering the witness statements and documents contained in the prosecution brief (ts 12 ‑ 13). I noted that s 93 of the Criminal Procedure Act 2004 provides that if an accused pleads not guilty to a charge on account of unsoundness of mind and the judge is satisfied that the only fact in issue is whether the accused is criminally responsible under s 27 of the Criminal Code, the judge may decide the issue on any evidence and in any manner the judge thinks just, if the prosecutor consents and the accused does not object to the judge doing so and if it is in the interests of justice to do so. Having regard to that section and to the views expressed by the prosecution and defence I was satisfied that it was in the interests of justice to receive the statement of material facts as establishing the factual circumstances relevant to the determination of the issue in this case.
Relying on the agreed statement of material facts, the facts are as follows:
Background
1.The deceased John Clayton RIGDEN (DOB 20 October 1965) was 50 years old as at the date of the offence and his death.
2.The deceased was ordinarily resident at 14 Cohuna Drive, Armadale, which house he shared with his wife Richelle, daughter Here, son Taurus, their partners Taurean and Olivia, and Here and Taurean's children Caidance (8 years) and Rikham (4 years). 14 Cohuna Drive had a front door with a screen door on the outside that could be locked.
3.The accused (DOB 24 July 1989) was 26 years old as at the date of the offence.
4.The accused was ordinarily resident at 22 Kootingal Road, Armadale, which house he shared with Richard Smart.
Illicit substances and alcohol use history
5.The accused commenced using cannabis at the age of 14 and since that time had smoked it three times per week on average until the 12 to 24 months leading up to 25 May 2016 when his usage of cannabis decreased from being very regular to much less regular and eventually, occasional. The accused had no traces of cannabis in his system on 25 May 2016.
6.The accused commenced using methamphetamines at the age of 23 and frequently did not use it at all for long periods of time. There were however some periods where he used it two to three times per week but there is no evidence of methamphetamine usage in the 12 to 24 months leading up to 25 May 2016. The accused had no traces of methamphetamine in his system on 25 May 2016.
7.The accused was a heavy binge drinker between the ages of 16 and 18, however there is no evidence he has used any alcohol since the age of 20. The accused had no alcohol in his system on 25 May 2016.
Psychiatric history
8.The accused started to experience auditory and commanding hallucinations at the age of 14 years and had heard them almost continuously since then.
9.From the time that the accused became mentally ill his illness has been characterised by persistent auditory and commanding hallucinations. These chronic auditory hallucinations involve hearing the voices as both male and female saying negative and derogatory things about him.
10.The accused's auditory hallucinations would vary as to whether:
(i)They were distressing or not;
(ii)Whether they would command him to harm himself or others;
(iii)Whether he was able to recognise them as familiar;
(iv)The level of intensity and content;
(v)Whether they would often cause him to think of suicide.
11.A consistent feature however is the derogatory content.
2006 – First diagnosis
12.The accused was initially referred to Child and Adolescent Mental Health Services in May 2006 following an assault on a high school student in response to delusional beliefs. He was diagnosed with Schizophrenia, unspecified with a secondary diagnosis of Mental and Behavioural Disorder due to Psychoactive Substance Use (cannabis) and treated with oral antipsychotic medication. He was compliant with the treatment and his symptoms improved.
13.In June 2006 the accused was admitted to the 'Old' Bentley Adolescent Unit where the diagnosis was made of Paranoid Schizophrenia with associated Mental and Behavioural Disorder due to Psychoactive Substance Use (cannabis). On discharge from that admission the accused was referred for follow up by Bentley CAMHS and treatment with oral antipsychotic medication was continued.
14.Following his diagnosis in 2006 up until May 2016 the accused had become increasingly abusive and violent towards the deceased, his father. Throughout this time, the accused would make threats to kill his father by using knives and bullets.
2007
15.In August 2007 at the age of 18 years the accused was first admitted to an adult mental health service, Alma Street Centre, Fremantle Hospital, where his diagnosis was confirmed as Paranoid Schizophrenia with associated Mental and Behavioural Disorder due to Psychoactive Substance Use (cannabis and alcohol) and treatment continued with oral antipsychotic medication.
16. From 2007 to 2013 the accused rotated through acute assertive community treatment teams and residential rehabilitation teams within the Alma Street Service. During this time the accused was often homeless and disengaged from family support.
2009
17.In November 2009, at the age of 20, the accused was admitted to the Frankland Centre, State Forensic Mental Health Service, on transfer from Casuarina Prison, as he was hearing voices of a derogatory nature telling him to harm himself, which he found distressing. The accused believed that people around him were communicating with him by thought transfer and people were inserting thoughts directly into his mind.
18.There was an also an occasional sexual content to the symptoms in that 'I would be sitting around a bunch of old people and he'd [the deceased] put the thought in my head that his dick was bigger than mine. He would then show me his dick in my head,' which the accused found distressing.
19.The accused believed that the deceased would also put images in his mind of him gesturing that he was cutting the accused's throat, which the accused found distressing and threatening.
2010
20.In 2010 the accused attempted to hang himself due to distress over his symptoms. The intensity of the symptoms and his associated distress at this time fluctuated in proportion to his level of cannabis use.
21.From January 2010 until September 2015 the accused was followed up by Alma Street Centre community and inpatient services. He had a total of 12 separate referrals to services over that period with six admissions to the Inpatient Service, his diagnoses being consistently recorded as Paranoid Schizophrenia with associated Mental and Behavioural Disorder due to Psychoactive Substance Use (cannabis and alcohol). During this time the accused had derogatory auditory hallucinations and persecutory delusions and was frequently suicidal.
2013
22.In January 2013 the accused was admitted to Armadale‑Kelmscott Memorial Hospital mental health unit on one occasion where he presented with chronic, intrusive auditory hallucinations, paranoid delusion, and suicidal thoughts, and the same diagnoses were confirmed.
2015
23.In 2015 the accused was frequently homeless, living on the streets around the Fremantle area, often was aggressive and fighting, poorly compliant with medication, and abused cannabis, although his cannabis usage significantly reduced towards the later part of this period.
24.In October 2015 the accused was referred to Bentley Adult Community Mental Health Services after he had been placed in Tate Street Lodge, Bentley. He was then followed up intermittently by the Bentley Assertive Treatment Team and Continuing Treatment Team.
2016
25.On 26 March 2016 the accused moved to share accommodation in Armadale after having spent the preceding few months in accommodation at the Tate Street Lodge and Devenish Lodge. He left the accommodation soon after and was homeless in the Fremantle area for a few weeks before returning to Tate Street Lodge on 24 April 2016.
26.On 27 April 2016 the accused attended at the Mill Street Centre at Bentley Health Service complaining of auditory hallucinations of his father's voice and having thoughts about attacking his father. At this time the accused felt suicidal and said he was 'stressed by what dad was doing. I thought if I hurt him I'd get revenge.'
27.The accused was admitted to the inpatient unit at Bentley Hospital and upon examination it was ascertained he had an 'acute exacerbation of auditory hallucinations telling him to attack his father, unable to self-sooth (sic).' and that his thought content involved 'Homicidal thoughts involving his father. Preoccupied with seeking to harm same. Reported auditory hallucinations- commanding nature to harm his father.'
28.Notwithstanding this, a threat or violence risk assessment was not conducted.
29.During the accused's admission from 27 April 2016 to 2 May 2016 he was hearing the voice of his father getting into his head and upsetting him. The voice of his father would tell him to get up from where he was sitting. During this time the accused would also talk to the television and respond to unseen stimuli. He was medicated with injectable antipsychotic medication Flupenthixol Decanoate and the addition of oral antipsychotic Olanzapin.
30.On 2 May 2016 the accused left the unit and when he did not return, he was discharged and referred back to the Bentley Continuing Care Team where he received his Flupenthixol Depot injection on 11 May 2016.
31.The accused was due for his next scheduled depot at the Bentley Mental Health Service on 25 May 2016 however failed to attend.
Wednesday 25 May 2016
First visit to 14 Cohuna Drive
32.At about 9:10am the accused went to 14 Cohuna Drive, walked into the house and asked Taurus' partner Olivia if she had any cigarettes to which she answered no. The accused had a discussion with Olivia about some pies in the kitchen and then left the house.
Accused at his house
33.At about midday the accused's housemate Richard Smart observed the accused walking briskly around their house back and forth between the kitchen and dining room area. The accused was holding a small brown handled serrated knife and saying 'I'm going to kill him, I'm going to kill him' and 'I'm going to kill my Dad. I hate him'.
34.The accused was also heard by Richard Smart saying that he was going to commit suicide but was going to kill his Dad first and said 'I'm going to gut him'.
Second visit to 14 Cohuna Drive
35.Soon thereafter the accused returned to 14 Cohuna Drive and entered through the open garage door.
36.The accused's younger brother Taurus was at home and said to the accused 'Why do you think you can just walk into the house'. The accused yelled at Taurus 'It's my house, not yours'.
37.The accused was observed to be acting in a very aggressive manner and raising his voice.
38.Taurus told the accused to stop talking like that in front of the kids and the accused walked off and left the house.
Third visit to 14 Cohuna Drive
39.At about 4:45pm the deceased went to Canning Vale to play poker.
40.At about 6pm the accused went to 14 Cohuna Drive and banged on the screen door. He was observed to be angry and had his hands in his pockets.
41.Taurus opened the front door however did not unlock the screen door. The accused asked him where his Dad was and Taurus said 'Why?'. The accused said that he wanted to see his Dad to which Taurus said he was at poker.
42.The accused then said 'Oh yeah, tell him if he ever fucks with me again I will poke his eyeballs out with a knife'. Taurus told the accused to leave and closed the door. Taurus rang the deceased and told him what had happened. Taurus also rang the police.
43.At about 6:15pm police attended at 14 Cohuna Drive and spoke with members of the deceased's family about what had happened. Police left about 15 minutes later at 6:30pm.
44.Meanwhile, the accused returned to his house and told Richard Smart that he had had a fight with his Dad. The accused was observed stomping around the house while listening to music and saying that he was going to kill himself. He sounded very angry and was shouting the words 'Fuck off black dog'.
Fourth visit to 14 Cohuna Drive
45.At about 10pm the accused returned to 14 Cohuna Drive and banged on the front screen door.
46.The deceased, Taurean and Taurus went to the front door and the deceased's wife Richelle, and family members Olivia and children went to a back room. Here was in the lounge room and rang 000.
47.Taurean opened the front door, keeping the screen door closed and locked, and told the accused to go away. The accused spoke directly to the deceased and said 'I got my knife ready cunt', 'You wanna smash cunt' and 'Come outside you mother fucker'.
48.The accused then walked around the front garden before he went back to the front door and stabbed holes through the screen door with a 30cm kitchen knife. While doing that the accused kept saying 'Come outside my knife is ready for you'. The accused appeared angry and his eyes were wide open.
49.The three men told the accused to leave.
50.The deceased obtained a baseball bat and held it in his hand by his side. The deceased said to Taurus and Taurean that he was going to open the screen door. Taurus and Taurean told the deceased not to open the screen door however the deceased unlocked the screen door and the accused then turned the handle.
51.The accused rushed in and pushed the deceased against the wall opposite the front door, causing a picture frame on the wall to fall and smash. The accused stabbed the deceased twice, once to the neck and once to the chest.
52.The deceased fell to the floor in the hallway outside the bathroom, then managed to get up and fell again in the entrance to the bathroom where he lay trying to breath[e].
53.The deceased's daughter Here gave the deceased CPR. She rang 000 and was told to put a towel around the bleeding stab wound to his neck.
54.At about 10:22pm the ambulance arrived. Paramedics noted that the deceased was in the bathroom area lying on tiles with a lot of blood around him. The deceased had a very weak pulse, the wounds had stopped bleeding and there were no heart sounds detected with the stethoscope. CPR was commenced and at 10:30pm paramedics transported the deceased to Armadale Hospital where they arrived at 10:36pm.
55.John Clayton RIGDEN was pronounced deceased at 10:50pm as a direct result of the accused's conduct in stabbing him to the neck and chest.
Accused fled
56.Meanwhile, after he stabbed his father the accused ran out of the house with the knife. Taurean wrestled with the accused in the front yard. At this time Taurus swung the baseball bat at the accused and hit him three times across the back however the accused broke free, jumped on to a parked car over a fence and ran to the backyard at 27 Tait Street.
57.One of the residents at 27 Tait Street, Shannon Benfield, approached the accused and when only a couple of metres apart said to him 'Stop right there, give me the fucken knife'.
58.The accused turned around, held the knife out in a non‑threatening manner and offered it to Shannon Benfield. Shannon Benfield took the knife from the accused and put it in on a clothes dryer. Shannon Benfield noted that the accused appeared exhausted, was breathing heavily and could barely speak.
59.The accused reached for the knife after hearing yelling out the front however then asked Shannon Benfield to call the police. Shannon Benfield lit a cigarette and gave another to the accused. He asked the accused what was going on to which the accused said 'I had a fight with my Dad'. The accused finished his cigarette and caught his breath.
60.Police arrived soon after at about 10:20pm and arrested and cautioned the accused. The accused stated to police 'I had voices in my head telling me to hurt my father. I am diagnosed with schizophrenia'.
61.At about 10:30pm the police conveyed the accused to the Armadale Police Station where they again cautioned him. The accused said repeatedly 'I heard voices in my head telling me to try and hurt my father'. While in the interview room the accused stated 'If my Dad didn't want that to happen he shouldn't have left his front door unlocked'.
Thursday 26 May 2016
62.At about 2:20am the accused was told he was now under arrest on suspicion of murder to which he said ''What, Dad's dead? I didn't mean to kill him, I thought the knife just hit his arm'.
63.The accused was taken to Fiona Stanley Hospital where x-rays were taken of his left arm and shoulder, and a CT scan conducted on his head. A blood sample was taken from the accused and no alcohol was detected.
EROI
64.At 9:11am an electronic record of interview was conducted with the accused by police (MCKNIGHT and MELEISA) during which the accused stated that:
-I was sitting at home listening to music (9)
-The voices in my head, they don't stop and it revs me up to the point where I want to hurt someone, hurt myself (10)
-And that day I went around to my parents' house and walked in the door and my younger brother said don't walk in the door like that. And I said, well it was open
-So I just left and went to harm myself but I did it instead
-(the people I want to hurt are) my Dad (11)
-Cause my Dad's voice is in my head
-And sometimes he takes other people's sides and I don't like it
-I didn't want to kill the bloke (11)
-All I wanted to do was harm to the point where I was satisfied
-To the point where I won't need to do it again. I don't know what went wrong but he ended up dying (12)
-(by hurt him until I was satisfied I mean) pick up a knife and do something, like stab him in the arm or stab him like that (13) until the anger is gone (14)
-I'd rather him dead rather than put up with his shit for the rest of my fucking life
-It's not my fault he died (15)
-I do feel sorry for him that he died but looking back on what he's done to me. I'd rather have him dead than alive. Cause if he was still alive I would be fucking crazy. I'd be trying to kill myself
-I'm happy now. Now I can live with my friends and the people I want to be around (16)
-But now he's gone I can just get it all out of my head now cause he's dead. It's not going to bother me
-I took the knife over there (17)
-(I went over there because) I wanted to start trouble. I didn't want to kill him (19)
-I walked in the house with the knife and then it unleashed, with their baseball bats so I pushed my way towards to my Dad and then stabbed him with the knife
-I thought I stabbed him in the arm and then I ran outside
-I don't kill people for fun. I'll get the person who I want. I'll get Dad for what he's doing to me (21)
-And if he dies, he dies. It's not my fault
-I didn't mean to kill him with a knife. All I wanted to do was prove a point
-When (the illness) is in my head I can't control it sometimes. But usually it's my Dad. Now my Dad's gone I don't see anyone else
-I went running around the first time with a knife (when dad playing cards)(25)
-And then my dad wasn't there so I went home (26)
-(The knife came from) my room, in the top of my drawers (27)
-(I have been pissed off with my father) about 5 years (31)
-It's not my fault the door was open
-I have clearer thoughts, it's like having my own thoughts back again (37)
-The voice telling me to hurt my Dad (38)
-It's like my Dad said I've had enough of you (39)
-Cause he's always here
-If he was still alive then I'd still be crazy
-I don't feel crazy now
-I could get crazy, someone might piss me off again
-I think I did the right thing cause now it's helping my mental illness (40)
-I can think positively
-I stabbed him once. It was just a nick
-I'm just hearing him talking now but he is talking in the background. He's not talking to me anymore. I'm the winner. He's the fucking loser. And I do feel better because of it (42)
Post-mortem
65.A post-mortem was conducted by pathologist Dr Judith MCCREATH on 27 May 2016.
66.Dr MCCREATH determined that the cause of death was stab wounds (2) to the deceased's neck and chest (associated with bleeding onto the chest and injury to the aorta).
67.The stab wound to the neck was approximately 60mm in length over the right side of the neck, with a wound depth of at least 100mm. This wound track penetrated the posterior triangle of the right side of the neck and apex of the right pleural cavity associated with fracture of the right 1st rib.
68.The stab wound to the chest was 30mm in length over the left side of the chest just above the left nipple, with a wound depth of at least 135mm. The wound track penetrated the left 4th rib, pericardial sac, aorta and superior vena cava.
Admissions
The accused also made the following admissions pursuant to s 32 of the Evidence Act 1906 (WA):
(1)At about 10.00 pm on Wednesday, 25 May 2016 at 14 Cohuna Drive, Armadale, William Mathrew Rigden stabbed his father John Clayton Rigden twice, once to the neck and once to the chest.
(2)At the time of stabbing John Clayton Rigden, William Mathrew Rigden intended to do serious harm to his father.
(3)At 10.54 pm on the same day John Clayton Rigden died as a result of the stab wounds inflicted by William Mathrew Rigden to his neck and chest.
Police interview
The accused was interviewed by police on the morning of 26 May 2016 at Fiona Stanley Hospital. The interview was recorded and the recording and a transcript were tendered in evidence by consent.
Some parts of the interview were mentioned in the statement of material facts and are referred to earlier in these reasons. The recording was played at the trial and parts of it were relied on by the psychiatrists who were called to give evidence. The evidence of the psychiatrists will be referred to later in these reasons.
Throughout the interview the accused is alert and appears to understand the questions put to him. He is lying down on a hospital bed with his head on a pillow, though sometimes in an awkward position. He does not consistently maintain eye contact with the officer questioning him but when he does so there is a marked intensity in his gaze.
Although the accused initially, and on legal advice, declines to answer some questions, this position changes after a relatively short time. Thereafter he answers all questions put to him and makes admissions regarding the stabbing of his father. However, his answers are often difficult to follow and include a series of apparently unconnected events whose logic is difficult to discern. He refers repeatedly to his father being in his head and to a voice that told him to hurt his father.
Psychiatric evidence
Two psychiatrists were called at the trial. Dr Stephen Patchett was called by the prosecution and Dr Mark Hall was called by the accused. They each produced written reports that were tendered in evidence and gave additional oral evidence.
Dr Stephen Patchett
For the purposes of his report Dr Patchett was provided with a copy of the prosecution brief, including the recording of the police interview with the accused. He also had access to four volumes of medical records held at the Franklin Centre. It was accepted by the parties that the factual circumstances drawn by Dr Patchett from the prosecution brief were contained in the statement of material facts (ts 54 - 56).
Dr Patchett also interviewed the accused on 29 August 2017 and 18 September 2017. It should be noted that the accused did not give evidence at the trial so the information provided to him (and to Dr Hall) was not confirmed in evidence on oath. However, neither side took issue with this and the truth of the information provided by the accused was not disputed. In any event both Dr Patchett and Dr Hall confirmed in evidence that their opinions would not have been any different if they had been unable to interview the accused (ts 36, 46). They both stated that the evidence of the accused's behaviour at the time of the incident, his medical history as revealed by the records and, in particular, the recorded police interview provided a sufficient basis for their conclusions (ts 36 - 37, 46 - 47).
Dr Patchett noted that the accused has an extensive history of contact with mental health services in Western Australia. His first contact was with Fremantle Child and Adolescent Mental Health Services in May 2006 at the age of 16 years. At that initial presentation he was diagnosed with schizophrenia (unspecified) with a secondary diagnosis of mental and behavioural disorder due to psychoactive substance use (cannabis). In June 2006 he was admitted to the old Bentley Adolescent Unit where a similar diagnosis was made, on this occasion specifying that the accused suffered from paranoid schizophrenia. On discharge he was referred for follow up by the Bentley Child and Adolescent Mental Health Service for treatment with an oral anti‑psychotic medication.
The accused was first admitted to an adult mental health service, the Alma Street Centre in Fremantle, in August 2007 at the age of 18 years. The previous diagnosis was confirmed and treatment continued with anti‑psychotic medication. Over the ensuing six years the accused rotated through Acute Assertive Treatment Teams and Residential Rehabilitation Teams within the Alma Street Centre. At this time his social circumstances were often described as disorganised and he was often homeless and disengaged from family support.
In November 2009 the accused was admitted to the Franklin Centre after being transferred from Casuarina Prison. He was aged 20 years at this time. On admission it was noted that he had a fixed delusional system and believed that people around him were communicating with him by thought transfer and were inserting thoughts directly into his mind. He admitted to chronic auditory hallucinations and described the voices and being both male and female who were saying negative and derogatory things about him. The previous diagnosis of paranoid schizophrenia was confirmed and he was treated with long acting injectable anti‑psychotic medication and two oral anti‑psychotics. On discharge it was noted that the accused had been hearing voices on a continuous basis since the age of 14 years.
From January 2010 until September 2015 the accused was subject to treatment by the Alma Street Centre. He had a total of 12 referrals over that period with six admissions to an in‑patient service. The previous diagnosis was repeatedly confirmed and there was frequently reference to poor treatment compliance, loss of contact with services and substance misuse. He was noted to be frequently homeless, frequently suicidal, living on the streets and attracting the attention of police for aggressive behaviour and fighting. Derogatory auditory hallucinations and persecutory delusions were constantly recorded features of his psychopathology.
During this six year period, the accused was also admitted to the Armadale Kelmscott Memorial Hospital Mental Health Unit in January 2013 where the diagnosis was again confirmed and the presence of chronic, intrusive auditory hallucinations and paranoid delusions were noted. It was again noted at that time that he was poorly compliant with medication, had been abusing cannabis and was suicidal. He was discharged to a psychiatric hostel in the Fremantle area.
In October 2015 the accused was referred from Fremantle to the Bentley Adult Community Mental Health Services after being placed in a residential lodge in the Bentley area. He was then followed up intermittently by the Bentley Assertive Treatment Team and a Continuing Treatment Team. During this period he continued to abuse illicit substances and engage poorly with his care teams. He was admitted to the Bentley Hospital In‑patient Service on 27 April 2016 and was treated as having been discharged when he was absent without leave on 3 May 2016. This was three weeks prior to the commission of the alleged offence.
The discharge summary from the six day admission at the Bentley Hospital records an acute exacerbation of auditory hallucinations telling the accused to attack his father. At this stage he was receiving an injectable anti‑psychotic medication on a fortnightly basis but was also continuing to use cannabis and alcohol. Homicidal thoughts involving his father were noted in a mental status examination. He was treated whilst at the hospital with an additional oral anti‑psychotic.
Dr Patchett concluded that the accused has an extensive history of treatment for paranoid schizophrenia. His psychosis first developed at 15 years of age and has been characterised by prominent auditory hallucinations and persecutory delusions with aggressive, and at times violent, behaviour. The accused's treatment through the years has been complicated by ongoing substance misuse, poor compliance with prescribed medication and poor insight which has led to frequent disengagement from services and spasmodic follow up. He has had 30 separate episodes of care within the state mental health services, predominantly Fremantle and Bentley Hospitals and associated community services.
Dr Patchett is of the view that the accused's illness has responded poorly to the management plans of mental health services with the result that he has been unwell and psychotic for much of the past 13 years. His treatment outcomes have been hindered by continued substance abuse, poor insight, poor engagement with services, social isolation and homelessness. The accused has previously exhibited violent behaviour, including towards family members, and his father in particular. This has resulted in family support being progressively tested and withdrawn over time.
As previously mentioned, three weeks before the alleged offence the accused self‑presented to Bentley Hospital reporting command auditory hallucinations and homicidal thoughts involving his father. He took leave from the hospital after five days and was discharged after he did not return. He made clear threats to stab his father and to kill him during the day and early evening of 25 May 2016. When he returned to the family home at 10.00 pm he yelled further threats with a clear expressed intention to harm or kill is father.
When first examined following the offence the accused reported hearing voices telling him to harm his father. While the police interview does not constitute a psychiatric examination there were a number of admissions made and clear indications recorded on the taped interview of a disturbed and psychotic mental state. Dr Patchett's own examinations of the accused also revealed the same psychotic phenomenon with the same consistency and intensity as revealed in the interview. The particular psychotic elements that were displayed include auditory hallucinations, delusions of thought broadcast, thought insertion, control and passivity, and that his emotions were being 'revved up' by his father.
In Dr Patchett's view the accused's psychosis at the time of the alleged offence was of such intensity that he believed his father controlled his mind and essentially that his father lived in his mind, manipulated his mind and even produced his imagery. In Dr Patchett's view the accused was 'clearly extremely unwell at the time he committed the alleged offence'.
In Dr Patchett's opinion the accused was in a psychotically disturbed mental state at the time of the alleged offence, being a mental impairment as defined in s 27 of the Criminal Code. Whilst Dr Patchett was of the view that the accused understood what he was doing when he stabbed his father, he believed that it was possible that the accused lacked the capacity to control his actions in going to his parents' house, armed with a knife to stab his father. This is because he believed his mind had been taken over and controlled by his father to such an extent that the free agency of his own mind was not his anymore. Further, Dr Patchett is of the view that there is compelling evidence from a psychiatric point of view that the accused was deprived of the capacity to know that he ought not to do the act of stabbing his father with a knife, which resulted in his father's death.
Dr Mark Hall
Dr Hall also summarised the accused's past history of mental illness. Dr Hall stated that the accused has an established diagnosis of schizophrenia and that his condition is severe and longstanding. He said that the accused has experienced persistent treatment resistant symptoms which have been aggravated by his use of substances primarily cannabis and to a lesser extent methamphetamine. The predominant symptoms of his illness have been distressing auditory hallucinations of a derogatory and commanding nature and paranoid delusions that others interfere with his mind or intend to harm him.
A relevant factor, in Dr Hall's view, was the transfer of the accused's care in September 2015 from the Alma Street Centre to the Bentley Mental Health Service. The Alma Street Centre had noted the accused's sporadic compliance with medication, substance abuse and frequent hospitalisation as reasons that he had been managed under the Assertive Care Team. The level of management subsequently provided by the Bentley Mental Health Service was however less than assertive and had more of a 'routine approach'. The subsequent transfer of the accused's care from the Bentley Mental Health Service to the Armadale Mental Health Service on 1 April 2016 was, in Dr Hall's view, premature especially given his known tendency to either leave accommodation or be evicted from it due to poor behaviour. The result was that he became lost to follow up for a period of time after he inevitably left new accommodation and then ended up back at a lodge in the catchment area of the Bentley Service.
As has been previously noted, the accused presented to hospital on the evening of 26 April 2016 seeking help for his psychotic symptoms, specifically homicidal thoughts involving his father and auditory hallucinations commanding him to harm his father. Hospital records indicate that the accused was seen only once by medical staff during that five day admission and that there was no exploration of his presenting symptoms on that occasion, or at least any such exploration was not documented. After leaving the ward he was placed on overnight leave in his absence and discharged the following day when he was confirmed as being back at a lodge in the Bentley area. The plan was that his Community Case Manager would visit him the following day. However, other than briefly attending the clinic for his depot anti‑psychotic injection on 11 May 2016, the accused in fact had no contact with any community mental health staff between his discharge from hospital and the alleged offence.
Dr Hall considered whether the accused was fit to stand trial. Since being at the Franklin Centre following his arrest, the accused has been subject to treatment, including a trial with a different sort of medication. His condition has improved with that treatment. In Dr Hall's view the accused is currently fit to stand trial.
As to the relationship between the accused's mental state and the alleged offending, Dr Hall stated that the predominant symptoms of the accused's illness have been auditory hallucinations of a derogatory and often commanding nature which he has found invasive and distressing to the extent of feeling suicidal at times. He has also experienced interference with his thinking, which he believed was mostly perpetrated by his father, and which was associated with a paranoid belief that his father was against him. The accused's psychosis caused him to experience his father as relentlessly psychically intrusive, abusive and controlling, which he believed was deliberate and threatened his sanity (as he understood that).
It is Dr Hall's opinion that having presented to hospital on the evening of Wednesday 26 April 2016 with psychotic symptoms including homicidal thoughts in respect of his father, the accused continued to experience such symptoms after he was discharged and was experiencing them at the time of the alleged offence.
In Dr Hall's view the accused was not deprived of the capacity to understand what he was doing, that is he knew he was attacking his father with a knife. Nor, in Dr Hall's view, was the accused deprived of the capacity to control his actions. Dr Hall said that the accused's illness diminished the accused's capacity to control his actions but did not deprive him of such control. However, Dr Hall was of the view that the accused was deprived of the capacity to know that he ought not to do the act. He had long perceived an interminable threat to his own sanity that had become acutely painful to him in the weeks prior to the alleged offending and was very distressed as a result. That distress, accompanied by his drive for self‑preservation, specifically with respect to the integrity of his own mind as he perceived it, eclipsed his moral and social inhibitions.
Dr Hall considered whether the accused's psychotic symptoms were solely due to substance use. As has been previously noted, neither alcohol nor illicit drugs were detected in the accused's blood following the incident. Dr Hall is of the opinion that the accused's use of cannabis and to a lesser extent methamphetamine would have exacerbated his symptoms but were not causal of his condition or those symptoms.
Other evidence
The prosecution also tendered the report of the forensic pathologist who conducted the autopsy of the deceased. This confirmed that the cause of death was the stab wounds inflicted by the accused.
Finally, the prosecution tendered a file of medical records. These records confirm the history of mental illness that was summarised by both Dr Patchett and Dr Hall in their reports, and that has been referred to earlier.
General legal principles
In a trial by judge alone the judge is required to state the principles of law that have been applied in coming to a verdict: s 120(2) of the Criminal Procedure Act. Amongst the most fundamental principles in any criminal trial are the presumption of innocence and that the prosecution bears the onus of proving each element of the offences charged beyond reasonable doubt. If the prosecution fails in this regard then the charge is not proven and the only proper verdict is one of not guilty.
To the extent that it is necessary to draw inferences as to essential facts from the evidence, it is important to consider whether there are possible alternatives consistent with innocence. It is not possible to draw an inference adverse to an accused person unless it is the only reasonable inference. This is an aspect of the requirement that a charge be proven beyond reasonable doubt.
Before the accused can be convicted of the crime of murder it would have to be proven beyond reasonable doubt that he committed that offence. The relevant elements of the offence, for the purposes of this trial, are that the accused killed John Clayton Rigden, that the killing was unlawful and that he did so with either an intention to kill or an intention to cause an injury that was or was likely to be life endangering.
It is unlawful to kill any person unless the killing is authorised, justified or excused by law: s 268 of the Criminal Code. A person who causes the death of another, either directly or indirectly, is deemed to have killed that other person: s 270 of the Criminal Code. In the present case, the accused made a formal admission that he caused the death of his father. I am therefore satisfied beyond reasonable doubt that he did kill him.
Whether a killing constitutes the offence of murder depends upon the intention of the accused at the relevant time. In the present case a defence of insanity has been raised. Where that defence has been raised, it is necessary to consider whether the accused is criminally responsible for the killing having regard to s 27 of the Criminal Code. Only if that question is answered adversely to the accused does the next question arise, namely, what was his intention at the relevant time. The issue of insanity falls to be determined before the issue of intent: Ward v The Queen [2000] WASCA 413; (2000) 23 WAR 254 [25] (Kennedy J).
In the event that the insanity defence is not established, it would then be necessary to consider whether the prosecution has proven that the accused had the intention to kill or cause a life endangering injury to his father at the time of his killing.
In assessing the evidence and reaching a verdict, it is important to guard against any feelings of prejudice or sympathy. Such feelings must be put aside and the question of guilt determined on an objective and dispassionate assessment of the evidence.
Insanity
Section 27 of the Criminal Code provides as follows:
Insanity
(1)A person is not criminally responsible for an act or omission on account of unsoundness of mind if at the time of doing the act or making the omission he is in such a state of mental impairment as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.
(2)A person whose mind, at the time of his doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.
As is evident, the section contains two bases for relieving a person of criminal responsibility where there is a mental impairment. The first of these is where the mental impairment deprives the person of one of the relevant capacities. The second only arises where a person has the relevant capacities but nonetheless has a delusion which affects some specific matter that is relevant to the charge. In the present case, the first basis is relevant and the defence case is that the accused was deprived of either the capacity to control his actions or the capacity to know that he ought not to do the act which caused the death of his father.
Section 1(1) of the Criminal Code defines 'mental impairment' as including mental illness, and mental illness is itself defined as an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli.
In The State of Western Australia v Lang [No 2] [2016] WASC 206, Jenkins J referred to what is meant by a disease of the mind. I respectfully adopt what her Honour there stated:
In Radford (1985) 20 A Crim R 388, 396, King CJ, of the South Australian Court of Appeal, said in relation to the meaning of the expression 'disease of the mind' when it is used in relation to the law of insanity:
(1)'disease of the mind' is synonymous with 'mental illness';
(2)a temporary disorder or disturbance of an otherwise healthy mind caused by external factors is not properly regarded as a disease of the mind;
(3)major mental illness or psychoses such as schizophrenia are clearly diseases of the mind as are physical diseases, such as psychomotor epilepsy and arteriosclerosis, when they affect the soundness of the mental faculties;
(4)disease of the mind is to be distinguished from 'mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self control and impulsiveness'; and
(5)in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called ' "defect of reason" in the M'Naghten rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli'.
King CJ's comments were generally approved of in the context of the then Criminal Code provisions in R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 54, 60, 76 and 82.
When Falconer was decided, the Criminal Code s 27 was differently worded. The subsequent amendments to the Criminal Code are consistent with King CJ's statement of principles in Radford, although the definition of 'mental impairment' is broader than that of 'disease of the mind' which was considered by King CJ.
What is a mental illness is a question of law for the judge. Whether or not the facts disclose a state of mental illness is a question for the decider of fact [27] ‑ [30].
Every person is presumed to be of sound mind at any time which comes in question unless the contrary is proved: s 26 of the Criminal Code. Accordingly the accused has the burden of proving insanity and the standard of proof is the balance of probabilities: R v Porter [1933] HCA 1; (1933) 55 CLR 182.
As to what is meant by capacity to know that a person ought not to do an act, Dixon J said in Porter:
We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by 'wrong'? What is meant by wrong is wrong having regard to the everyday standards of reasonable people' (189 ‑ 190).
His Honour went on to say, at page 190, that what is meant by 'incapacity' in these contexts is 'not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong'.
In Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358 the High Court held that there is no requirement that an accused knows that the act is wrong in the sense of contrary to law. What is required is that the accused knows right from wrong, good from evil, not legality from illegality. However the High Court observed:
The truth perhaps is that, from a practical point of view, it cannot often matter a great deal whether the capacity of the accused person is measured by his ability to understand the difference between right or wrong according to reasonable standards, or to understand what is punishable by law, because in serious things the two ideas are not easily separable. But in certain cases, where the insane motives of the accused arise from complete incapacity to reason as to what is right or wrong … he may yet have at the back of his mind an awareness that the act he proposes to do is punishable by law (375).
The High Court also held in Stapleton that the capacity which must be found to be lacking is not merely a capacity to appreciate in some abstract sense that others would have viewed the act as wrong. Rather, it is a capacity of the particular accused either to discern the difference between moral good and evil or to think rationally of the reasons that would lead ordinary people to consider the act to be right or wrong: see, Evans v The State of Western Australia [2010] WASCA 34 [60] (Wheeler JA, Owen JA agreeing).
Also in Evans, McLure P considered what is meant by the term 'know' in s 27:
The term 'know' means understand, appreciate or comprehend. An incapacity to reason rationally as to what is right or wrong according to ordinary standards prevents a person from understanding that he (or she) ought not do the act. Knowledge (short of understanding) that to kill is punishable by law does not prevent such a finding. Nor is a finding of incapacity dependent upon proof of a positive belief in the rightness of the conduct. Whether an act is right or wrong is determined by reference to an objective standard. The question is whether the appellant had a complete incapacity to reason as to what was, by that objective standard, right or wrong. In this case the appellant's subjective belief was relied upon by the experts to support the conclusion that he was in a psychotic state that prevented rational reasoning on right or wrong [31].
In Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138 the Court of Appeal considered the significance of uncontradicted expert psychiatric opinion where the issue of insanity has been raised by an accused. Miller JA said:
Neither a jury nor a judge sitting alone are bound to accept and act upon expert evidence. But where there is no evidence to contradict that evidence, a verdict cannot be given contrary to it. The principles were well summed up by Roden J in R v Hall (1988) 36 A Crim R 368, where a number of relevant cases were reviewed. Roden J said (at 370 - 371):
Juries are not bound to accept and act upon expert evidence. Nevertheless they are not entitled to disregard it capriciously. These two propositions have found expression and support in a line of authorities developed in England with regard to the defences of insanity and diminished responsibility.
In Rivett (1950) 34 Cr App R 87, Lord Goddard CJ, said (at 94):
The second matter for emphasis is that it is for the jury and not for medical men of whatever eminence to determine the issue. Unless and until Parliament ordains that this question is to be determined by a panel of medical men, it is to a jury, after a proper direction by a judge, that by the law of this country the decision is to be entrusted.
The Court of Criminal Appeal was there dealing with medical evidence relating to a defence of insanity.
Eight years later, when dealing with a defence of diminished responsibility, Lord Goddard showed the other side of the coin, in Matheson [1958] 1 WLR 474; 42 Cr App R 145, saying (at 478; 151):
While it has often been emphasised, and we would repeat that the decision in these cases, as in those in which insanity is pleaded, is for the jury and not for doctors, the verdict must be founded on evidence. If there are facts which would entitle a jury to reject or differ from the opinions of the medical men, this court would not, and indeed could not, disturb their verdict, but if the doctors' evidence is unchallenged and there is no other on this issue, a verdict contrary to their opinion would not be "a true verdict in accordance with the evidence",
In Bailey (1977) 66 Cr App R 31, another diminished responsibility case, Lord Parker CJ said (at 32):
The court has said on many occasions that of course juries are not bound by what the medical witnesses say, but at the same time they must act on evidence, and if there is nothing before them, no facts and no circumstances shown before them which throw doubt on the medical evidence, then that is all that they are left with, and the jury, in those circumstances, must accept it.
In both Matheson and Bailey, manslaughter verdicts were substituted for jury verdicts of guilty of murder, on the basis that the medical evidence was 'all one way', and there was no other material which would justify its rejection. It was otherwise in Walton [1978] AC 788; 66 Cr App R 25. The Privy Council was there considering a murder conviction where a diminished responsibility defence had been rejected. In the judgment, which was delivered by Lord Keith of Kinkel, there are observations that 'the jury were entitled to regard (the medical evidence) as not entirely convincing', and 'their Lordships have come to be of opinion that in all the circumstances the jury were entitled not to accept as conclusive the expression of opinion by Dr Bannister'. After a consideration of both Matheson and Bailey, the following statement of principle was made:
These cases make clear that upon an issue of diminished responsibility the jury are entitled and indeed bound to consider not only the medical evidence but the evidence upon the whole facts and circumstances of the case. These include the nature of the killing, the conduct of the defendant before, at the time of and after it and any history of mental abnormality. It being recognised that the jury on occasion may properly refuse to accept medical evidence, it follows that they must be entitled to consider the quality and weight of that evidence.
The effect of those decisions is accurately summarised in Professor Smith's commentary on Walton in (1977) Crim LR 747 at 748:
If the medical evidence is all one way and in favour of the accused and there is nothing in the facts and surrounding circumstances which could lead to a contrary conclusion, then a verdict against the medical evidence cannot be sustained. In the present case there were facts and circumstances in addition to the medical evidence and the jury was therefore entitled to reject that evidence. (370 ‑ 371)
Allen J summarised the position as follows (at 380 - 381):
There is no rule of law that a verdict of guilty will be quashed as unsafe in any case in which the verdict is inconsistent with medical evidence called for the accused - even where no medical evidence has been called for the Crown. On the other hand there is no rule of law that an appellate court will not quash such a verdict - refusing to do so because it is open to a jury to reject the opinion of any expert witness. Each case is unique. The totality of the evidence must be weighed: Walton [1978] AC 788; 66 Cr App R 25. In assessing medical evidence a multitude of factors must be taken into account - including the standing of the expert, whether he expresses his opinion with conviction or with hedging, whether the opinion expressed in its nature seems reasonable or fanciful, whether it incorporates assumptions not founded upon the evidence given, and whether the evidence given, upon which the opinion is based, is to be believed. It is clearly settled that it can be unreasonable for a jury to reject medical testimony: Walton; Chester [1982] Qd R 252; 5 A Crim R 296 [124] ‑ [125].
In the same case, Steytler P referred to other cases where notwithstanding psychiatric evidence of incapacity there had been a conviction. However, in such cases there was invariably a basis upon which the psychiatric evidence could be properly discounted. For example in R v Matusevich & Thompson [1976] VR 470 the presence of a strong and sane motive for the killing and premeditation explained the jury's refusal to act upon uncontradicted psychiatric evidence.
Of course in any case it is not sufficient to merely establish that the accused had a mental illness at the time of the alleged offence. It is the degree and effect of that illness upon the relevant capacities that is important. In Hone Steytler P referred to the case of the R v Michaux [1984] 2 Qd R 159; (1984) 13 A Crim R 173, a case involving a medical practitioner who was convicted of offences of administering stupefying drugs and sexually assaulting a number of his patients. Steytler P said:
There was no doubt, in Michaux, that the appellant had suffered from a mental disease at the relevant times. However, the evidence given by the experts on the question whether his mental state had deprived him of capacity to control his actions, or of capacity to know right from wrong, was equivocal. Further, on the appeal, the court considered that the jury was entitled to have regard to the appellant's course of conduct in denying the earlier attack and making exculpatory attacks on some of the complainants. It could treat these as being indicative of a guilty mind and one that was aware that the acts in question were legally and morally wrong. Connolly J (with whose reasons Campbell CJ and McPherson J agreed) said (at 164; 177 ‑ 178):
The principles which are applicable to a situation such as this are not, I think, in doubt. Where there is unchallenged medical evidence of facts which would bring an accused person within the provisions of s 304A of the Criminal Code and there is no evidence to cast doubt on the medical opinions, a verdict which fails to give effect to those facts will not be supported by the evidence and will be set aside and the lesser verdict substituted: R v Dick [1966] Qd R 301; R v Matheson [1958] 1 WLR 474; R v Chester [1982] Qd R 252. The same conclusion obviously follows when the facts would bring the accused within s 27: Taylor v The Queen (1978) 22 ALR 599. However, it is otherwise where there is evidence which casts doubt on the medical opinions. Such evidence may go to the factual basis assumed for the purposes of the medical opinions as in R v Wallace [1982] Qd R 265. Again it may be that the behaviour of the prisoner himself is such as to cast such a doubt. Cf Walton v The Queen [1978] AC 788 at 793. And, of course, the jury is amply entitled to scrutinize the medical evidence itself for qualifications, concessions, and reservations. As their Lordships observed in Walton v The Queen:
It being recognised that the jury on occasion may properly refuse to accept medical evidence, it follows that they must be entitled to consider the quality and weight of that evidence [6].
His Honour also noted at [7] that in assessing the actions of an accused person it may be important to avoid the danger of applying the standards of commonsense and rationality used by sane rather than mentally ill people. In Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659 one of the factors that the prosecution sought to rely upon as revealing that the accused had an awareness of what he had done was wrong was his attendance at a police station immediately after he had killed a woman. That was a case in which a man had stabbed his partner and was found to be a paranoid schizophrenic. In this regard the High Court (Dixon CJ, McTiernan, Fullagar, Menzies & Windeyer JJ) said:
The reasoning upon which the cross‑examination was based was, of course, the kind of reasoning which a sane mind would pursue, while it is apparent from the reading of the transcript of the evidence that the reasoning of the witnesses was based on the belief or assumption which they adopted that the prisoner's mind was not sane and accordingly would be governed by quite different beliefs and perceptions, and a different consciousness and understanding of the things that would be significant to the sane. In cases of this kind it may well happen that expert witnesses accepting the hypothesis that a prisoner is insane are not on the same ground as counsel adopting the opposite hypothesis and argument according to the common sense of ordinary men supplied by the experience of sane persons (663).
In Hone there was no evidence or circumstances that could displace or cast doubt upon the expert evidence given by a psychiatrist as to the lack of mental capacity of the appellant in that case. In the present case both of the psychiatrists are in agreement that the accused was suffering from a mental impairment at the time of the killing.
Findings
There can be no doubt that from at least 2006 the accused suffered from a mental illness. This was of a fluctuating severity but was sufficiently severe on a number of occasions to result in his admission to psychiatric hospitals. The longstanding diagnosis was of paranoid schizophrenia with a secondary diagnosis relating to substance abuse. His illness was marked by numerous episodes of acute psychosis accompanied by delusions and auditory hallucinations. These delusions consistently focused on the deceased and a belief by the accused that he had to kill the deceased.
Both Dr Patchett and Dr Hall are firmly of the view that the accused was suffering a psychotic episode in the course of his longstanding paranoid schizophrenia at the time he stabbed his father. Both psychiatrists agree that the accused lacked the third relevant capacity at that time, that is the capacity to know that what he was doing was wrong. Dr Patchett is also of the view that the accused may have lacked the second capacity, that is the capacity to control his actions. Dr Hall does not share this view, though it is apparent from his evidence that this does not involve a difference of opinion so much as a difference as to the level of satisfaction (ts 45).
I accept the opinions of both psychiatrists that at the time of the killing the accused was in an acute psychotic state. His recent admission to the Bentley Hospital, his behaviour on the day in question and his demeanour and answers in the interview with the police shortly after the event all support this conclusion. In that state he felt it was necessary to comply with the commands of the voices in his head to kill his father. In this sense it may well be said that he lacked the capacity to control his actions. However, in any event, I am satisfied on the balance of probabilities that the accused was deprived of the capacity to know that what he was doing was wrong. Indeed his delusional state of mind led to him having a firm belief that what he was doing was both necessary and right.
It should be noted that whilst there is evidence that during the long course of the accused's chronic mental illness his condition was exacerbated by illicit drug use, there is no evidence that his psychotic state on the day of the killing was drug induced. No evidence of recent drug or alcohol use was found when a blood test of the accused was conducted shortly after the event.
As it has been established that the accused lacked the capacity to know that he ought not to harm or kill his father, the requirements of s 27 of the Criminal Code have been met. Therefore, the accused is not criminally responsible for his actions on account of unsoundness of mind.
Conclusion
I find the accused not guilty on grounds of unsoundness of mind. The accused will be the subject of a custody order pursuant to the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 21.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AM
ASSOCIATE TO THE HONOURABLE JUSTICE HALL25 JULY 2018
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